Victory in the Senate: Update on the bill to mandate open access at the NIH

We had a big victory in the Senate last month. For the first time ever, the Senate voted to demand an OA mandate at the NIH. Because the House of Representatives adopted the same language in July, this is also the first time ever that both houses of Congress have demanded an OA mandate at the NIH.

The OA mandate still has to clear two hurdles before it is law: the House and Senate versions of the bill have to be reconciled before going to the President, and then the President has to sign it. President Bush has threatened to veto the bill on grounds unrelated to its OA provision. But the victory is important even if the bill faces a Presidential veto, and the importance is not merely symbolic: the Senate vote actually helps the mandate survive a veto.

For background, let me first run quickly run through the saga to date. I've reduced the long story to a long paragraph, but the length is part of the story. We've made slow and steady progress over the past three years --slow enough to cause frustration, but steady enough to justify the optimistic thought that progress is inevitable:

In September 2004, the House of Representatives appropriations report demanded an OA mandate at the NIH. The report language was not binding, and the NIH drafted a weaker policy requesting OA but not requiring it. The Senate appropriations bill remained silent on the issue, and the conference committee reconciling the House and Senate appropriations bills adopted the NIH's watered down version of the policy. In May 2005, the NIH policy took effect as a request. In November 2005, the NIH's own Public Access Working Group recommended that the policy be strengthened to a requirement. In February 2006, the National Library of Medicine Board of Regents affirmed the recommendation that the policy be strengthened to a requirement. The same month, the NIH released data showing that grantee compliance with its request was below 4%. In April 2006, NIH Director Elias Zerhouni told a House subcommittee that "the voluntary policy is just not enough" to achieve the agency's goals. In June 2006, the House Appropriations Committee again demanded an OA mandate at the NIH, this time as part of the binding appropriations bill . Again, the Senate was silent on the issue. But this time, before the conference committee could reconcile the bills, the Democrats took control of both the House and the Senate. Party bickering and budgetary delays forced Congress to turn to a continuing resolution to fund the government, dropping the House appropriations bill, canceling the vote on the Senate counterpart, and forcing us to start all over again the following year. In March 2007, Dr. Zerhouni testified again that the agency needed an OA mandate. In July 2007, once again, the House of Representatives adopted an appropriations bill demanding an OA mandate at the NIH. This time, in October 2007, finally, the Senate adopted the same language.

For more detail up to this year's vote in the House, setting the stage for the historic Senate vote, see my coverage in the August 2007 issue of SOAN. This includes the language of the House bill, my assessment of the language, the procedural journey to date, and President Bush's threat of a veto.http://www.earlham.edu/~peters/fos/newsletter/08-02-07.htm#nih

Now I'll slow down and tell more of the story in the Senate.

The key bill is the so-called Labor, Health and Human Services (or LHHS) appropriations bill. Why the clumsy name that has nothing to do with the NIH or OA? The US federal government is so large that it needs 13 separate appropriations bills every year to cover the whole territory. The House and Senate Appropriations Committees each have 13 subcommittees, and each subcommittee writes the budget for its assigned portion of the government. The portion containing the NIH is assigned to the House and Senate subcommittees on Labor, Health and Human Services, Education and Related Agencies. So the long clumsy name is already an abbreviation. The legislation could have been called the Labor, Health and Human Services, Education and Related Agencies appropriations bill, or LHHSERA for short.

There are many ways for Congress to change policy at a federal agency. In this case, the change was attached to a new appropriation. The LHHS appropriation bill tells the NIH, in effect, here's your money for fiscal 2008 and, by the way, we direct you to adopt an OA mandate for NIH-funded research.

In this year's budgeting process alone, the language mandating OA at the NIH survived six public airings --four markups and two votes. All six were opportunities for anti-OA amendments and all six were active battlegrounds between friends of OA and the publishing lobby.

(1) June 8, 2007. The House LHHS subcommittee held a "markup" session (to draft language and consider amendments) on the House version of the fiscal 2008 LHHS appropriations bill. The subcommittee agreed to include the provision mandating OA at the NIH. This was only the second time that OA language was included in the actual House LHHS Appropriations Bill, as opposed to the accompanying, non-binding report.

(2) June 18, 2007. The Senate LHHS subcommittee held a markup session for the Senate version of the LHHS appropriations bill. This subcommittee also agreed to include the provision mandating OA at the NIH, and this too was only the second time that OA language was included in the actual Senate LHHS Appropriations Bill.

(3) June 21, 2007. The full Senate Appropriations Committee held markup for the Senate LHHS appropriations bill. The NIH provision survived intact.

(4) July 12, 2007. The full House Appropriations Committee held markup of the House LHHS appropriations bill. The NIH provision survived intact.

(5) July 19, 2007. The full House of Representatives adopted the LHHS appropriations bill with the NIH provision intact.

(6) October 17, 2007. The day the Senate LHHS bill came to the floor of the Senate for debate and a vote, the White House issued a Statement of Administration Policy (SAP).

The SAP strongly opposed several aspects of the bill, including one to fund stem-cell research. But it expressed only mild concerns about the NIH provision. The weak SAP suggests that, if the President does veto the bill, it will not be on account of the NIH provision. Likewise, the SAP probably didn't influence any Senator to vote against the bill, at least on account of the NIH provision. http://www.earlham.edu/~peters/fos/2007/10/white-house-response-to-proposed-oa.html

The part of the SAP on the NIH contained familiar FUD about peer review and copyright, but it also mentions "the benefit of public access to taxpayer supported research". The bottom line is not "strong opposition", which the SAP levels against several other provisions, but a belief that "any policy should balance" the benefits against the "possible impact" on peer review and copyright.

This was the first time that any OA policy had ever appeared in a presidential SAP. Until this point, going back to the birth of the NIH policy in 2004, OA has generated debate in Congress but only indifference in the White House. The change is entirely due to the publishing lobby, which took its case to the executive branch. When friends of OA did the same, the result in the SAP was a fairly innocuous statement of concern.

Finally, on October 23, 2007, the full Senate adopted the LHHS appropriations bill with the NIH provision intact. The vote was a veto-proof 75-19. This was the first time that the full Senate had ever voted on, let alone approved, an OA policy.

Earlier in the day, Sen. Inhofe withdrew his amendments, perceiving a lack of support. However, he did file a "colloquy" --a speech to be included as part of the legislative history-- objecting to the NIH provision and asking the House-Senate conference committee to reconsider it.

The House and Senate LHHS bills use identical language to describe the NIH policy. But the bills differ in other respects and therefore must be reconciled by a conference committee before going to the president for a signature or veto. The conference committee is already at work.

In the conference committee there are two strong reasons to keep the NIH provision intact: the full House vote and the full Senate vote. And there are two weak reasons to strike or amend it: the White House SAP and Sen. Inhofe's colloquy. Conference committees usually approve language approved by both houses. But they are not bound by those votes, and we've always done better in open votes than in closed door negotiations. The conference committee should finish its work soon after I send out this issue of the newsletter.

Today, three years after the House first called for an OA mandate, a good many members of Congress in both houses and both parties simply get it and want public access to publicly-funded research. We owe the victory to them. But many members are still unfamiliar with the issue, or mistake it for a copyright issue, and are vulnerable to the relentless and misleading lobbying by publishers. We also owe the victory, then, to the Washington-based champions of OA led by SPARC and the Alliance for Taxpayer Access, for shoring up support among friends, educating members and staffers about the issue, and neutralizing opposition. I followed their exhausting and effective work step by step and can praise it unreservedly because I'm not praising myself. I was in Maine, not Washington.

* What's next?

When the final LHHS bill emerges from the conference committee, President Bush will probably veto it. At least he promised to veto if it does not remove certain objectionable provisions and reduce its overall spending by about $9 billion.

If he does veto the bill, it's still far from dead. First, Congress might override the veto. For that it needs two-thirds of each house. The NIH provision already has more than enough support in the Senate, where the vote was 75-19. But it falls short of that level of support in the House, where the vote was 276 to 140. The House might or might not muster the 14 new votes it needs to override a veto.

But even if Congress doesn't override the veto, some version of the bill still has to pass, with a Presidential signature, or one-thirteenth of the federal government will not be funded for fiscal 2008 (which started on October 1, 2007). In that case, Congress will make some changes in the bill in order to satisfy the President's objections, and the President might make some concessions of his own in order to fund the government. During the negotiations, everything is open to scrutiny. But the provisions passed by both houses will be the least likely to be dropped or modified. That's why victory in the Senate was so important for us, even if a Bush veto is inevitable.

There are two reasons not to despair if President Bush vetoes the LHHS appropriations bill later this month. If Congress overrides the veto, then the OA mandate language will become law. Just like that. If Congress fails to override the veto, and modifies the LHHS appropriation instead, then the OA mandate is likely to survive intact.

Remember this: Congress was in Republican hands when the House called for an OA mandate at the NIH in 2004. It was in Republican hands when the House called for an OA mandate again in 2006. The fact that we won the Senate vote this year when Congress is now in Democratic hands does not mean that OA is a Democratic issue. OA has always had strong bipartisan support, and we depended on Republicans as well as Democrats this year for the strong votes in each house. We particularly depended on Republican support to help prevent the publishing lobby from inserting a stronger objection to the NIH policy into the White House SAP.

As we move into the post-veto political season, pundits and politicians will try to polarize the debate along party lines. That's not entirely misleading. The President will criticize Democrats for appropriating more money than he wants to spend, and will appeal to Republican members of Congress, as Republicans, to resist attempts to override his veto. Any veto override battle is a battle between Congress and White House, and this year the two branches are under the control of different parties. But this partisan polarization overlooks the many separate provisions in the vetoed bills, some of which have strong Republican support. This is especially true of the OA mandate at the NIH. Don't let the publishing lobby frame *this* issue as partisan. That will overlook the entire history of the NIH policy --not to mention the indispensable role of conservative Republican, John Cornyn (R-TX), in sponsoring the Federal Research Public Access Act (FRPAA).

Finally, *thanks* to all of you for your calls and letters to the Senate. They really did make a difference.

PS note: This is the first time I've co-authored an article in SOAN. I'm drawing special attention to it in order to make sure that no one overlooks the contribution of my co-author, Caroline Sutton of Co-Action Publishing.

We are pleased to announce the first results of an ongoing research project.

The overall project has two phases. Phase One is to make a comprehensive list of scholarly societies worldwide that support gold OA for their own journals. The journals might be full OA or hybrid OA, and the society's relationship to its journals might be that of owner, publisher, or partner with the publisher. (For convenience, when we say below that a society "publishes" an OA journal, we'll mean that it has at least one of these relationships to it.) The list includes the journals themselves, and associated data, as well as the societies.

If we can find funding, Phase Two will survey the societies turned up in Phase One in order to learn details about their turn to OA, their business models, and the financial and academic consequences of their OA policies.

The idea was to test the widespread impression that learned societies as such feel threatened by OA. The impression isn't just a side-effect of hearing some society publishers publicly oppose OA; it's often deliberately cultivated by associations representing society publishers such as the ALPSP and the DC Principles Coalition. A related goal was to learn business-level details from the OA-friendly societies in order to help other societies make the transition.

If you have additions or corrections, please send them to Caroline Sutton at <projects@co-action.net>.

The full OA journals are associated with societies in 57 countries and regions. The top three countries are the US (with 93), Japan (84), and India (62). One sign that there's a long tail is that the number drops off quickly between number three, India, and number four, Canada (with 18). By contrast, the hybrid OA society journals are largely concentrated in the US (49) and the UK (19).

The society with the most OA journals is the World Academy of Science, Engineering and Technology (formerly the World Enformatika Society), with 22. One society publishes seven, one society publishes six, two publish three each, and 11 publish two each. Most societies publishing OA journals publish just one.

The society with the most hybrid OA journals is the American Chemical Society, with 33. The Royal Society has 11, the American Physical Society has seven, the Linnean Society of London has three, and three societies have two each. Only five societies publish just one hybrid journal.

Just as some societies publish more than one journal, some journals are published by more than one society. Seven journals on our list are joint projects of more than one society. One journal, Informatika, involves seven cooperating societies. Another, Contemporary Issues in Technology & Teacher Education, involves five. Three journals involve two societies, and two journals involve three societies.

When societies want to outsource the publication of their full OA journals, or partner with others in their publication, most pick for-profit publishers. Medknow publishes 44 society journals. In fact, all but one of Medknow's journals are society journals. Most of the societies choosing Medknow are Indian, but a few are Saudi Arabian. MedKnow, by the way, is not only for-profit but also profitable. Hindawi, also for-profit and profitable, co-operates with nine societies to publish 11 journals. BioMed Central publishes three, and Springer and Lippincott each cooperate on one. Of the non-profit publishers, Highwire Press co-operates on 7, the Royal Society of Chemistry publishes 1, and seven university presses publish one each. Co-Action Publishing itself will publish one starting in 2008.

Of hybrid journals, 12 are published by for-profit publishers, and the rest by societies.

Most full OA society journals (234) ask authors to transfer copyright. 148 don't describe their copyright policies on their web sites. Only 51 allow authors to retain copyright in some form. Only 15 say they use Creative Commons licenses, although some may do so without mentioning it and some mention using equivalent licenses. Two journals ask authors to agree to joint ownership of the copyright with the society. One lets authors choose whether to transfer or retain copyright, and one allows the author to retain copyright but imposes a one-year embargo on the author's own posting of the article elsewhere.

Of hybrid OA society journals, 33 allow authors to retain copyright and 39 require them to transfer copyright. 13 use CC licenses. Only one copyright policy was too unclear for us to summarize. Clearly hybrid OA journals pay more attention to copyright issues than full OA journals do.

Most society OA journals (356) are in the STM fields. 51 are in the social sciences, 32 in the humanities, five in the arts, and the rest multidisciplinary.

Of hybrid OA journals, two are in the social sciences and all the rest in the STM fields. Hybrid journals are clearly most common in the fields in which most authors have research grants from which they might be able to pay the journal's publication fee.

Compared to full OA society journals, hybrid OA society journals are (1) rarer; (2) published in fewer countries; (3) more likely to be part of a suite of similar journals from the same society, as opposed to the society's only journal; (4) more likely to be published by for-profit publishers; (5) more likely to have a clear and publicly-available copyright policy; (6) more likely to let authors retain copyright; (7) more likely to use CC licenses; and (8) more likely to be in the STM fields.

Of the full OA journals, 75 charge author-side publication fees. In some cases, however, a journal may provide society members (or even others) with anywhere from 2-8 pages free of charge. 12 journals charge submission, as opposed to publication, fees; and of these 12, eight also charge publication fees. Two journals invite authors to make voluntary contributions to cover the cost of publication.

In an October 2005 study sponsored by the ALPSP, Cara Kaufman and Alma Wills found that a majority of OA journals (52.8%) charged no publication fees. Our list shows that a much larger majority (83.3%) of society OA journals charge no publication fees.

* Why bother?

As we mentioned, two goals of the project are to test the widespread impression that learned societies as such feel threatened by OA and to learn business details from the societies with gold OA experience that might help those without it. A third goal was to help societies find similarly situated, OA-friendly societies in the hopes that conversations with fellow society publishers might be more productive than conversations with OA advocates who are neither society officers nor publishers.

This summer Peter was talking to a society publisher who voiced the common argument that society publishers can't move to gold OA because they need subscription revenue to support their journal's quality as well as other society operations. Peter mentioned that the Optical Society of America publishes an OA journal (Optics Express) which makes a surplus and has the highest impact factor in its field.

The publisher's response was essentially, "Yes, but our society is not like the OSA."

It's a fair answer, and it would have been just as fair if Peter had cited a different society publisher of a different OA journal. There's a very wide variation among learned societies. No matter which OA-friendly society you cite as a model, and no matter which OA-averse society you might be talking to, the odds are that your dialogue partner could truthfully respond, "Yes, but our society is not like that one. Ours is larger or smaller. It's in a different field. Our journal has a higher or lower circulation. It has a higher or lower price. It has a higher or lower impact factor. It has a higher or lower rejection rate. It competes with a, b, and c, rather than x, y, and z. It comes out more often or less often. It does more or less copy editing. It depends more or less on advertising and reprints. It provides a higher or lower percentage of society revenue. It has a higher or lower percentage of individual subscribers. It publishes a higher or lower percentage of articles based on publicly-funded research."

One purpose of our list is to move conversation and debate past the "yes, but" response, which is justified as a statement of fact but not as a conversation-stopper. In one-on-one comparisons between societies, the odds are that we will find more relevant differences than similarities. But the list reduces or reverses the probabilities. The societies on our list are very diverse, nearly as diverse as the larger population of society publishers overall. The odds are that there is at least one society on our list with which any given society will have more relevant similarities than differences.

These similarities may be as unexpected to the societies themselves as they are to OA advocates. Societies that just don't see how to make gold OA work in their own case may be surprised to find similarly situated societies who are making it work or giving it a serious try.

We're not saying that all the OA society publishers are doing as well as the Optical Society of America. We won't know until we do Phase Two. But we hope that society officers who haven't seen a promising way to convert their own journals to OA will find encouragement in this list, look for similarly situated societies, and explore new OA possibilities in constructive conversations with their counterparts from other societies. We hope that rank and file society members will do the same.

We realize that the motivations to publish full OA journals differ significantly from the motivations to publish hybrid OA journals, and therefore we treat them separately in our list.

There may still be good reasons for a given society publisher to conclude that it cannot convert its journal to OA. In that case, we hope the society can at least support green OA and not lobby against government OA policies. On the question of gold OA, the length of our list changes the question from what makes the OA society publishers rare and special to what makes the OA holdouts hold out. How many of the objections or fears will turn out to be myths that can be answered by the publishers with actual OA experience?

Our list of 425 societies is 12.5 times larger than that list of 34 societies.

These comparisons are admittedly rough, if only because lobbying against OA mandates is not the opposite of publishing OA journals. Some societies do both, and some societies do neither. But even as a very rough comparison, it seems that the society publishers supporting gold OA far outnumber those opposed to government OA policies --and the disparity would only widen if we threw in the society publishers supporting green OA.

We know that our list raises more questions than it answers, and hope to be able to provide some of those answers in Phase Two. When societies convert their journals to OA, or hybrid OA, do they lose money? Do their impact factors reflect the OA impact advantage? Do submissions go up or down? If they charge a publication fee, how do they set its level? If they don't charge publication fees, how do they cover their publication expenses? How did they make their decision to convert to OA?

In short, are there lessons here for other societies considering a turn to gold OA?

* Method

Our list has two sources. First, Peter had been maintaining an informal database of the OA and hybrid OA society journals he encountered in his daily research. Second, Caroline systematically completed Peter's list from the DOAJ (Directory of Open Access Journals) and research on individual society and journal web sites.

(PS note: My contribution was to do small amounts of work over a long period of time, while Caroline's was to do a very large amount of work over a short period of time.)

In DOAJ, we conducted searches based on the following key words: "society", "association", "federation", and "organization/organisation". The database searches were conducted first in the general DOAJ and then in the "for Authors" section in order to capture information on the hybrid OA journals. We used these words in English for our preliminary results and hope to supplement those results as we go forward.

We're likely to have overlooked societies if they never crossed Peter's radar and do not use any of the keywords above in their journal title. That's one reason we regard the list as unfinished and ask for your additions and corrections.

There were several kinds of borderline case that we omitted from our list. For example, we excluded journals associated with university departments or research institutes rather than learned societies. If a journal used one of our keywords in its title but was not associated with a scholarly society, we excluded it. We also excluded journals no longer accepting submissions, and journals only offering OA for an introductory trial period.

We didn't require that the societies on our list own the journals associated with them. They might own and publish them; or they might own them and outsource the publishing to a separate company or organization; or they might regard the journal as the official journal of the society even if owned and published by a separate organization. What we required was an official endorsement and a significant form of cooperation with the journal.

Most regrettably, the list is limited to journals with enough editorial matter in English to enable us to identify them as OA or OA hybrid journals significantly associated with a learned society. We're sure we've omitted many eligible journals and welcome word of them from people in a position to know their status.

A number of new OA journals will start publishing in January 2008, and a number of older journals will convert to OA in January 2008. We included these on the list.

All the journals on the list are peer reviewed or conduct some other form of professional quality control. The vast majority of the journals listed are research journals containing original research articles and reviews. Some of the titles listed are newsletters and contain administrative information in addition to scholarly contributions.

If we can secure funding for Phase Two, we hope to work with a considerably larger and more comprehensive list of societies and journals.

(1) I missed a good one and thank Jan Velterop for reminding me. In June 2007, Springer struck a deal with the Dutch library consortium, Universiteitsbibliotheken en de Koninklijke Bibliotheek (UKB), allowing the UKB's subscription payments to count as publication fees on behalf of faculty affiliated with UKB member institutions. It's only a partial example because the journals don't become OA. But the new articles by authors at UKB member institutions do become OA. For details and links, see my blog post for October 3,http://www.earlham.edu/~peters/fos/2007/10/more-on-flipping-journals.html

(2) I described the funding model of the Stanford Encyclopedia of Philosophy only enough to show its similarity to (ahem) the second half of a two-flip conversion. As a result, I left out many details and probably left a false impression for many readers. SEP's Principal Editor Ed Zalta and Senior Editor Uri Nodelman wrote a good note to clarify the model. For details and links, see my blog post for October 4,http://www.earlham.edu/~peters/fos/2007/10/more-on-stanford-encyclopedia-of.html

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Round-up

Here's what happened, or what I noticed, since the last issue of the newsletter, emphasizing action and policy over scholarship and opinion. I put the most important items first, with double asterisks, and otherwise cluster them loosely by topic. Most of the time I link to my blog posts, not to the sources themselves, because I only want to use one link per item and my blog posts usually bring many relevant links together.

* ACS Executive Director Madeleine Jacobs conceded to the Chronicle of Higher Education that "senior executives and some managers in the publishing division have a 'small portion' of their overall incentive compensation 'based on meeting certain financial targets.'" But she did not believe it was a conflict of interest for the same executives to decide that the ACS would officially oppose government OA policies.http://www.earlham.edu/~peters/fos/2007/10/acs-concedes-incentive-pay-for.html

Publishing in the New Millennium: A Forum on Publishing in the Biosciences (sponsored by Harvard Medical School) (OA is among the topics)http://www.harvardpublishingforum.com/Cambridge, November 9, 2007

Opportunities for Publishers in a World of Institutional Repositories (sponsored by the Society for Scholarly Publishing)http://tinyurl.com/2j5vl3Washington, D.C., November 12, 2007

* I've added 18 new conferences to my conference page since the last issue. In the next few days I'll delete the second asterisk marking them and the new entries will blend into the rest of the collection.http://www.earlham.edu/~peters/fos/conf.htm

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This is the SPARC Open Access Newsletter (ISSN 1546-7821), written by Peter Suber and published by SPARC. The views I express in this newsletter are my own and do not necessarily reflect those of SPARC or other sponsors.

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